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EVIDENCE OF ROUTINE MAINTENANCE OF THE PARKING LOT WHERE PLAINTIFF ALLEGEDLY FELL, I.E. EVIDENCE OF HABIT, PROPERLY ADMITTED IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT).

The Fourth Department determined evidence of routine maintenance of the parking lot, essentially evidence habit, was properly admitted in this slip and fall case which resulted in a defense verdict:

… [P]laintiff appeals from an order that, inter alia, denied that part of his pretrial motion seeking to preclude habit evidence. …

” Proof of a deliberate repetitive practice by one in complete control of the circumstances’ is admissible provided that the party presenting such proof demonstrates a sufficient number of instances of the conduct in question’ ” … . Here, the testimony of the maintenance staff concerning their daily routine in maintaining the subject parking lot was properly admitted as evidence of their conduct prior to the incident at issue. Rozier v BTNH, Inc., 2018 NY Slip Op 07575, Fourth Dept 11-9-18

NEGLIGENCE (EVIDENCE OF ROUTINE MAINTENANCE OF THE PARKING LOT WHERE PLAINTIFF ALLEGEDLY FELL, I.E. EVIDENCE OF HABIT, PROPERLY ADMITTED IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT))/SLIP AND FALL (EVIDENCE OF ROUTINE MAINTENANCE OF THE PARKING LOT WHERE PLAINTIFF ALLEGEDLY FELL, I.E. EVIDENCE OF HABIT, PROPERLY ADMITTED IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT))/HABIT (SLIP AND FALL, EVIDENCE OF ROUTINE MAINTENANCE OF THE PARKING LOT WHERE PLAINTIFF ALLEGEDLY FELL, I.E. EVIDENCE OF HABIT, PROPERLY ADMITTED IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT))

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AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department determined the vehicle stop could not be justified on the ground that the stop was made by a peace officer, and also could not be justified on the ground the stop was a citizen’s arrest. Therefore the motion to suppress the firearm found in the car was properly granted. The vehicle stop was made by an agent with the US Customs and Border Protection Air and Marine Operations after the agent became concerned about the driver’s dangerous operation. The agent called the Buffalo Police Department and pulled the car over using his truck’s emergency lights. A police officer arrived and the officer and the agent approached the car together:

In concluding that the agent unlawfully stopped the vehicle, the [motion] court determined that the agent had the powers of a peace officer, but that the traffic stop could not be justified on that basis because the agent was not acting pursuant to his special duties or within his geographical area of employment. The court also determined that the traffic stop could not be justified as a valid citizen’s arrest because the agent, who had the powers of a peace officer, activated the emergency lights and approached the stopped vehicle with the BPD officer and therefore acted under color of law and with the accouterments of official authority rather than as a private citizen. …

A private person, however, is not authorized to display such emergency lights from his or her private vehicle… . Moreover, a private person may not falsely express by words or actions that he or she is acting with approval or authority of a public agency or department with the intent to induce another to submit to such pretended official authority or to otherwise cause another to act in reliance upon that pretense … . Thus, the agent was not lawfully acting merely as a private person effectuating a citizen’s arrest when he activated emergency lights that were affixed to his truck by virtue of his position in law enforcement. …

Even if a violation of the citizen’s arrest statute is not necessarily a violation of a constitutional right, we conclude that adherence to the requirements of the statute implicates the constitutional right to be free from unreasonable searches and seizures … by precluding a person who “act[ed] under color of law and with all the accouterments of official authority” from justifying an unlawful search or seizure as a citizen’s arrest … , and that suppression is warranted where, as here, the purported private person is cloaked with official authority and acts with the participation and knowledge of the police in furtherance of a law enforcement objective … . People v Page, 2018 NY Slip Op 07552, Fourth Dept 11-9-18

CRIMINAL LAW (SUPPRESSION, PEACE OFFICER, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/PEACE OFFICER (VEHICLE STOP, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/CITIZEN’S ARREST (VEHICLE STOP, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/VEHICLE STOPS (PEACE OFFICER, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/TRAFFIC STOPS (PEACE OFFICER, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))/STREET STOPS (PEACE OFFICER, AGENT FOR US CUSTOMS WAS NOT ACTING AS A PEACE OFFICER WHEN HE EFFECTED A VEHICLE STOP AND DID NOT EFFECT A VALID CITIZEN’S ARREST, THEREFORE THE MOTION TO SUPPRESS THE FIREARM FOUND IN THE VEHICLE WAS PROPERLY GRANTED (FOURTH DEPT))

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ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, over a two-justice dissent, considering a matter of first impression, reversing Supreme Court, determined that a gas supply company could not acquire easements over private property by eminent domain for the installation of a pipeline for which the state denied a permit:

In February 2017, the FERC [Federal Energy Regulatory Commission] granted petitioner’s application for a certificate of public convenience and necessity to construct and operate a 97-mile natural gas pipeline from Pennsylvania into western New York. The pipeline’s proposed route travels directly across respondents’ land … . Within the voluminous certificate, the FERC found that petitioner’s “proposed [pipeline] project is consistent with the Certificate Policy Statement,” i.e., the public interest. “Based on this finding and the environmental review for the proposed project,” the FERC further found “that the public convenience and necessity require approval and certification of the project.” …

… [T]he New York State Department of Environmental Conservation (DEC) denied petitioner’s application for a WQC [water quality certification]. The WQC application, held the DEC, “fails to demonstrate compliance with New York State water quality standards.” Petitioner has taken various steps to challenge the WQC denial, including the filing of a petition for judicial review in the Second Circuit pursuant to 15 USC § 717r (d). It appears that those challenges have not yet been finally resolved. It is undisputed, however, that if the WQC denial is ultimately upheld, the pipeline cannot be built … . * * *

… [P]etitioner is trying to expropriate respondents’ land in furtherance of a pipeline project that, as things currently stand, cannot legally be built. Such an effort turns the entire concept of eminent domain on its head. If the State’s WQC denial is finally annulled or withdrawn, then petitioner can file a new vesting petition. But until that time, petitioner cannot commence a vesting proceeding to force a sale without going through the entire EDPL [Eminent Domain Procedure Law] article 2 process. Matter of National Fuel Gas Supply Corp. v Schueckler, 2018 NY Slip Op 07550, Fourth Dept 11-9-18

UTILITIES (GAS PIPELINE INSTALLATION, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))/GAS PIPELINE (EMINENT DOMAIN, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))/REAL PROPERTY LAW (GAS PIPELINE, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))/EMINENT DOMAIN (GAS PIPELINE INSTALLATION, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))/ENVIRONMENTAL LAW  (GAS PIPELINE INSTALLATION, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))/GAS PIPELINE (EMINENT DOMAIN, ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT))

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PLAINTIFF BANK DID NOT MEET FACE TO FACE WITH DEFENDANT BEFORE THREE MONTHLY MORTGAGE PAYMENTS WERE MISSED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should not have been denied. Plaintiff bank did not seek a face to face meeting with defendant before three mortgage payments were missed:

In her pro se answer to the amended complaint, defendant alleged that the loan was subject to Federal Housing Administration guidelines and that plaintiff failed to comply with the regulations of the Department of Housing and Urban Development requiring the mortgagee to undertake certain pre-foreclosure measures, including a face-to-face meeting with the mortgagor, with respect to such loans. Although defendant did not specifically cite 24 CFR 203.604, the regulation establishing the face-to-face meeting requirement, in her answer, we afford the pro se answer a liberal reading … , and conclude that defendant “sufficiently apprise[d] plaintiff” that she was challenging plaintiff’s compliance with the requirements of that regulation … .

Plaintiff failed to establish that it complied with the requirements of 24 CFR 203.604 and thus failed to establish that it was entitled to judgment as a matter of law on the amended complaint… . More specifically, plaintiff did not arrange or attempt to arrange a face-to-face interview with defendant at any time “before three full monthly installments . . . [were] unpaid” (§ 203.604 [b]). Instead, the first attempt was made in June 2011, i.e., more than six months after the first installment went unpaid. Moreover, plaintiff did not establish that it sent notices to defendant by certified mail, as required by section 203.604 (d).  Bank of Am., N.A. v Spencer, 2018 NY Slip Op 07573, Fourth Dept 11-9-18

FORECLOSURE (PLAINTIFF BANK DID NOT MEET FACE TO FACE WITH DEFENDANT BEFORE THREE MONTHLY MORTGAGE PAYMENTS WERE MISSED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/BANKING LAW (FORECLOSURE, PLAINTIFF BANK DID NOT MEET FACE TO FACE WITH DEFENDANT BEFORE THREE MONTHLY MORTGAGE PAYMENTS WERE MISSED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

DEFENDANTS DID NOT EXERCISE SUPERVISORY CONTROL OVER THE MEANS AND MANNER OF PLAINTIFF’S WORK. LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department determined the Labor Law 200 and common law negligence causes of action were properly dismissed because the plaintiff’s injuries resulted from the means and manner of work and defendants did not exercise supervisory control  over plaintiff’s work:

“It is settled law that where the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under section 200 of the Labor Law”… . “Defendants moving for summary judgment on Labor Law § 200 and common-law negligence causes of action may thus show their entitlement to summary judgment by establishing that plaintiff’s accident resulted from the manner in which the work was performed, not from any dangerous condition on the premises, and [that] defendants exercised no supervisory control over the work’ “… . Here, defendants established that the wires hanging above the roof of the garage did not, as alleged by plaintiff, constitute a “tripping and walking hazard” along an area of the property leading to the work site; instead, the alleged defect arose from plaintiff’s method of performing the work by foregoing appropriate, authorized means of obtaining access to the utility pole and deciding to traverse the pitched roof of the garage over which the wires hung … . Inasmuch as defendants exercised no supervisory control over the injury-producing work, defendants established their entitlement to summary judgment dismissing the section 200 and common-law negligence causes of action … . Anderson v National Grid USA Serv. Co., 2018 NY Slip Op 07572, Fourth Dept 11-9-18

LABOR LAW-CONSTRUCTION LAW (DEFENDANTS DID NOT EXERCISE SUPERVISORY CONTROL OVER THE MEANS AND MANNER OF PLAINTIFF’S WORK. LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION PROPERLY DISMISSED (FOURTH DEPT))

PEOPLE DID NOT PROVIDE A SUFFICIENT RACE-NEUTRAL REASON FOR STRIKING AN AFRICAN-AMERICAN JUROR, CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined that the People did not provide a sufficient race-neutral reason for striking an African-American juror. The case had been remitted for a hearing on the issue:

We agree with defendant that the People failed to meet their burden at step two of the Batson analysis to articulate a “race-neutral reason” for striking the prospective juror … . On remittal, the prosecutor testified that he did not remember his reason for striking the prospective juror at issue, but stated that it had “nothing to do with race.” The prosecutor testified that, instead, “there was something on [the prospective juror’s] jury questionnaire . . . that [he] did not particularly like,” which would have provided a basis for exercising a peremptory challenge if he “could not clarify [that] issue” during voir dire. The prosecutor, however, had no recollection of the subject prospective juror’s actual questionnaire, which, apparently, was not preserved.

We conclude that the prosecutor’s articulated reason for striking the only African-American prospective juror was insufficient to satisfy the People’s burden. As noted, the prosecutor could not recall a specific reason for striking the prospective juror, but rather assured the court in a conclusory fashion that the challenge was not based on race and was based, instead, on “something” in the prospective juror’s questionnaire. Thus, the prosecutor’s explanation “amounted to little more than a denial of discriminatory purpose and a general assertion of good faith” … . Where, as here, “the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, . . . precedents require that [defendant’s] conviction be reversed” … . People v Davis, 2018 NY Slip Op 07569, Fourth Dept 11-9-18

CRIMINAL LAW (PEOPLE DID NOT PROVIDE A SUFFICIENT RACE-NEUTRAL REASON FOR STRIKING AN AFRICAN-AMERICAN JUROR, CONVICTION REVERSED (FOURTH DEPT))/JURORS (CRIMINAL LAW, PEOPLE DID NOT PROVIDE A SUFFICIENT RACE-NEUTRAL REASON FOR STRIKING AN AFRICAN-AMERICAN JUROR, CONVICTION REVERSED (FOURTH DEPT))/BATSON CHALLENGE (CRIMINAL LAW, JURORS, PEOPLE DID NOT PROVIDE A SUFFICIENT RACE-NEUTRAL REASON FOR STRIKING AN AFRICAN-AMERICAN JUROR, CONVICTION REVERSED (FOURTH DEPT))

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EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department determined the employer’s motion for summary judgment in this third-party assault case was properly granted. After an employee (Hartfield) had been asked to leave for the day by the employer, the employee assaulted plaintiff in the parking lot. The doctrine of respondeat superior did not apply because the employee was not acting within the scope of her employment at the time of the assault:

… [D]efendant established as a matter of law that the doctrine of respondeat superior is inapplicable because Hartfield was not acting within the scope of her employment at the time of the assault. The doctrine of respondeat superior renders an employer “vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer’s business and within the scope of employment”… .. Although the issue whether an employee is acting within the scope of his or her employment is generally a question of fact, summary judgment is appropriate “in a case such as this, in which the relevant facts are undisputed” … . Here, we conclude that defendant met its initial burden of establishing that Hartfield’s assault of plaintiff was not committed in furtherance of defendant’s business and was not within the scope of employment … . Stribing v Bill Gray’s Inc., 2018 NY Slip Op 07566, Fourth Dept 11-9-18

NEGLIGENCE (EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT))/EMPLOYMENT LAW (RESPONDEAT SUPERIOR, EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT))/BATTERY (EMPLOYMENT LAW, RESPONDEAT SUPERIOR, EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT))/RESPONDEAT SUPERIOR (NEGLIGENCE, BATTERY, EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT))/THIRD PARTY ASSAULT (EMPLOYMENT LAW, RESPONDEAT SUPERIOR, EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN SHE ASSAULTED PLAINTIFF IN THE EMPLOYER’S PARKING LOT, SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED (FOURTH DEPT))

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DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant’s statement during the plea allocution raised a viable affirmative defense which required further inquiry by the court. The error was considered on appeal under a rare exception to the preservation requirement:

Although defendant’s contention survives his valid waiver of the right to appeal … , he failed to preserve that contention for our review inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction on that ground … . This case nonetheless falls within the rare exception to the preservation requirement … . Defendant made a statement during the plea allocution that raised a potentially viable affirmative defense pursuant to Penal Law § 130.10 (1), thereby “giving rise to a duty on the part of the court, before accepting the guilty plea, to ensure that defendant was aware of that defense and was knowingly and voluntarily waiving it” … . We conclude that the court’s inquiry here was insufficient to meet that obligation … . People v Rosario, 2018 NY Slip Op 07564, Fourth Dept 11-9-18

CRIMINAL LAW (DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))/APPEALS (PLEA ALLOCUTION, DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))/PLEA ALLOCUTION (DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))/GUILTY PLEA (DEFENDANT’S STATEMENT DURING THE PLEA ALLOCUTION RAISED A VIABLE AFFIRMATIVE DEFENSE WHICH REQUIRED FURTHER INQUIRY BY THE JUDGE, ERROR IS A RARE EXCEPTION TO THE PRESERVATION REQUIREMENT (FOURTH DEPT))

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MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT).

he Fourth Department, reversing (modifying Supreme Court), determined a motion seeking summary judgment on the Labor Law 241 (6) cause of action should not have been granted on a ground not raised in the motion. Defendants alleged the Labor Law 241 (6) cause of action should be dismissed because plaintiff was the sole proximate cause of his injuries. The judge, sua sponte, searched the record and granted summary judgment on a different ground:

… [T]he court erred in searching the record and granting summary judgment to plaintiff on his Labor Law § 241 (6) cause of action, and we therefore modify the order accordingly. Contrary to plaintiff’s assertion, although defendants did not advance their contention before the trial court, we conclude that the contention is properly before us because defendants lacked an opportunity to raise it at any time before this appeal … . Further, ” [a] motion for summary judgment on one claim or defense does not provide a basis for searching the record and granting summary judgment on an unrelated claim or defense’ ” … . Here, the only issue raised with respect to the Labor Law § 241 (6) cause of action was on defendants’ motion, wherein they asserted that dismissal was warranted on the ground that plaintiff was the sole proximate cause of his injuries. The court therefore erred in granting summary judgment to plaintiff based on alleged violations of 12 NYCRR 23-1.7 (b) (1) (c) and 23-3.3 (c). Lord v Whelan & Curry Constr. Servs., Inc., 2018 NY Slip Op 07563, Fourth Dept 11-9-18

CIVIL PROCEDURE (LABOR LAW-CONSTRUCTION LAW, MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))/LABOR LAW-CONSTRUCTION LAW (CIVIL PROCEDURE, MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))/JUDGES   (CIVIL PROCEDURE, MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))/SUA SPONTE LABOR LAW-CONSTRUCTION LAW, MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))

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FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A JURY NOTE WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL (FOURTH DEPT).

The Fourth Department reversed defendant's conviction because the trial judge did not fully advise counsel of the contents of a jury note:

We agree with defendant that the court violated the core requirements of CPL 310.30 in failing to advise counsel on the record of the contents of a substantive jury note, and thereby committed reversible error … . The record establishes that, during its deliberations, the jury sent several notes, the first two of which are germane here. The first note requested that the jury be provided with a written copy of the court's legal instructions, and the second note requested, inter alia, a rereading of all of the court's legal instructions. The record reflects that the court informed the parties that the jury had sent several notes and indicated that the jury requested a rereading of the instructions, but the court did not mention the contents of the first note. Although the record establishes that ” defense counsel was made aware of the existence of the [first] note, there is no indication that the entire contents of the note were shared with counsel' ” … . We therefore “reject the People's argument that defense counsel's awareness of the existence and the gist' of the note satisfied the court's meaningful notice obligation, or that preservation was required. Where the record fails to show that defense counsel was apprised of the specific, substantive contents of the note—as it is in this case—preservation is not required' . . . Moreover, . . . [i]n the absence of record proof that the trial court complied with its [meaningful notice obligation] under CPL 310.30, a mode of proceedings error occurred requiring reversal' ” … . People v Ott, 2018 NY Slip Op 06646, Fourth Dept 10-5-18

CRIMINAL LAW (FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A JURY NOTE WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL (FOURTH DEPT))/JURY NOTES (CRIMINAL LAW, FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A JURY NOTE WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL (FOURTH DEPT))/APPEALS (CRIMINAL LAW, JURY NOTES, FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A JURY NOTE WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL (FOURTH DEPT))

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